The private practice activity of hospital practitioners

Since the creation of full-time hospital positions, and in order to guarantee the attractiveness of hospital careers, hospital practitioners are authorized to practice liberal activities in the public health establishment where they are appointed (Article L. 6154-1 of the Public Health Code), within the framework of a contract concluded with the establishment, provided they meet the following conditions:

• the practitioner must personally and primarily exercise an activity of the same nature in the public hospital sector;
• the duration of the liberal activity must not exceed 20% of the weekly hospital service time to which the practitioner is bound;
• the total number of consultations and procedures performed under the liberal activity must be less than the total number of consultations and procedures performed within the hospital

(Article L. 6154-2 of the Public Health Code).

And to avoid competition with the hospital, a practitioner who has had private practice may be prohibited, after leaving, from engaging in paid private activity. (Article L6152-5-1 of the CSP), for a maximum period of twenty-four months, and up to ten kilometers around the establishment, subject to a dissuasive financial penalty.

The practitioners concerned can thus receive, in addition to the salary paid by the hospital, the fees and possible extra charges they bill for consultations and procedures carried out as part of their private practice, noting that establishments under the public hospital service are prohibited from charging extra fees in accordance with Article L. 6112-2 of the Public Health Code.

In return, the said practitioners pay the establishment a fee, the rate of which is set by regulation between 15% and 60% of the fees received, depending on the nature of the consultations or procedures performed, and on the academic status or not of the establishment.

Recently, this scheme has been extended, notably with Ordinance No. 2021-292 of 17 March 2021 "aimed at promoting the attractiveness of hospital medical careers", which relaxed the conditions.

Indeed, the development of private practice in public hospitals is a lever for attracting practitioners. Thus, the ordinance opened the system to hospital practitioners working at 80%, practitioners can now engage in private hospital activity from their probationary period, and on multiple sites within the territorial hospital group, and even outside their assigned hospital (Article L. 6152-4 of the CSP).

To prevent abuses, a control system has been deployed: a committee for the liberal activity of the establishment is responsible for ensuring the proper application of the provisions governing this activity as well as compliance with the clauses of the liberal activity contracts (Article L. 6154-5 of the CSP). And if it appears that a practitioner commits a breach of their obligations within the framework of their liberal activity, the Director General of the ARS may decide to suspend or withdraw the practitioner's authorization for liberal practice (Article L6154-6 of the CSP).

However, in October 2023, the Court of Auditors published a report entitled "Entities and public policies – Public and private healthcare establishments, between competition and complementarity", in which it draws a rather negative assessment of the system for combining hospital/private practice activities, highlighting the ineffectiveness of the legal limits, which are based on a duration criterion it deems ineffective.

According to the Court of Auditors, the duration condition must be supplemented by a financial condition: it recommends adding to the 20% service time limit an annual cap on fees received for liberal practice, and transmitting this data each year to management to enable more effective monitoring.

The Court of Auditors also notes that the cumulation system forces the Health Insurance to pay twice for part of the acts and services, since on one hand, it reimburses the fees paid by the patient to the practitioner for the liberal acts they perform, which include both the cost of the act and the cost of the resources mobilized by the establishment for its activity, and on the other hand, it pays the latter the rate of the Homogeneous Group of Stay (GHS), which itself includes the practitioner's salary and all costs related to patient care.

The Court of Auditors thus recommends an evolution of the regulations relating to liberal practice in public health establishments; it remains to be seen whether this recommendation will be followed by action…

 

Health Law